A return to first principles – evaluating proportionality of placement orders following Re N (A Child) (Placement Order: Proportionality) [2025] EWCA Civ 1541

Background

The case concerned an unusual set of circumstances. The relevant child (‘L’) was born in October 2023 following assisted overseas conception. The mother, aged 55 at the time of L’s birth, was a Japanese national who had lived in the UK for numerous years. After L’s birth, the Local Authority had concerns about the mother’s ability to care for him, leading to the mother agreeing to support in a placement under s.20 CA 1989. They remained in placements for 21 months, moving from a semi-independent placement to mother and baby foster placements, before the Local Authority successfully applied for care and placement orders.

Decision at First Instance

Threshold

The recorder determined that L was at risk of significant physical harm if he was to be cared for by his mother as:

1. There had been numerous small incidents involving L, such as L falling after the mother fell asleep with him on her lap and the mother placing a rubber mat under L’s highchair making it unstable; and
2. The mother failed to demonstrate a capacity to recognise and protect from those physical risks which if left unmanaged could have “potentially catastrophic” consequences ([146]).

It was also determined that L was at risk of significant emotional harm because:

1. The mother demonstrated “significant emotional dysregulation” ([149]), including aggressive and inappropriate behaviour towards professionals; and
2. As a result of the mother’s “personality and combative style of interaction” ([153]), the recorder was anxious that professionals may not feel comfortable raising concerns about L in the future.

Welfare

Care and placement orders were deemed necessary and proportionate to safeguard L’s welfare into the future. Attention was paid to the significant disruption which would be caused to L’s life, but it was determined that these risks could be mitigated by ongoing direct contact.

The Court of Appeal’s Decision

The Court allowed the appeal, setting aside the care and placement orders. The orders were substituted by an interim care order, and the applications were remitted to the High Court for a rehearing.

Peter Jackson LJ, giving the leading judgment, began by emphasising that “[u]nusual cases prompt a return to first principles” [39]. Therefore, at paragraph [42], his Lordship set out a three-pronged approach to take in circumstances such as these:

(i) in assessing the risk of future harm, the court should consider: the type of harm that may arise; the likelihood of it arising; the severity of the consequences if it arose; and what risk reduction or mitigation steps can be taken.

(ii) Having reached its conclusion about those matters, the court should make a comparison of the welfare advantages and disadvantages of each course of action; and

(iii) finally step back and check that any interference with rights arising from its proposed decision is necessary and proportionate.

In summary: in a case that turns on risk of harm, does the risk justify the remedy?

The Court made it clear that threshold was not crossed due to extreme circumstances, instead due to the substantial and repeated concerns raised by professionals as to the mother’s parenting and dismissive attitude towards professional guidance.

It is however important when considering whether to make a placement order to “maintain a sense of proportion and keep the bigger picture in view” ([45]). The case for L’s adoption was predicated on numerous small incidents paired with the mother’s dismissiveness. In circumstances such as these, “particularly compelling justification” is required to substantiate why a placement order is proportionate and necessary ([45]).   

The following were key factors which the recorder ought to have considered – and which practitioners should pay due attention to – when considering necessity and proportionality:

(1) Materialisation of harm

• The recorder highlighted that early childhood can be a risk-laden and dangerous time for small children if appropriate supervision is not in place. In light of the evidence of the mother’s obstinacy, the recorder had no doubt that the mother could not protect L from such risks.  
• However, courts are concerned with how the likelihood of risks materialising relates to the relevant child. The recorder “did not attempt to describe the increased likelihood of L having accidents, compared to small children generally”, and resultantly “unduly elevated the significance of this element of the welfare checklist” ([46]).
• The recorder therefore had not set out the necessary link which is central to the consideration of the increased likelihood of harm which the relevant child may suffer, as compared to those risks faced during the course of ordinary childhood
• The Court made it clear that during the two years which the child was placed with the mother the child did not suffer any actual harm, never mind significant harm – an essential step was therefore missing in recorder’s assessment.

(2) Identifying possibilities for risk management

• The recorder accepted the view of the ISW that effective 24/7 support could not be offered to the mother, despite the mother having set out that she wanted to work, was willing to employ a nanny or childminder and had already “voluntarily accepted extensive limitations on her freedom of action for nearly two years” ([47]).
• Peter Jackson LJ made it clear that the courts will scrutinise the availability of any alternatives, such as the employment of a nanny, community-based support or placement in a nursery, before adoption will be contemplated

(3) Significance of cultural and situational factors

• The recorder, whilst recognising these factors, failed to include them in her analysis and placed too much emphasis on the mother’s oral evidence when considering her likely future behaviour.
• The Court emphasised that “[t]he complex cultural factors … required particular caution” in the context of the mother’s lack of insight into the concerns raised by professionals.
• Consideration ought to have been given to “the extent to which effective protection might depend on insight, as opposed to other measures” ([49]).

(4) The impact of “difficult parents”

• Significant reliance was placed on the mother’s sporadic emotional dysregulation, but L had not suffered any apparent harm from those incidents.
• Whilst “many children have difficult parents and grow up surrounded by conflict” ([50]), what is important for the Court is a clear demonstration of how that difficulty feeds into resultant harm to the relevant child.

(5) Practicality of post-adoption contact as mitigation

• As set out above, the recorder was cognisant of the disruptions which L would likely face from separation but deemed the Local Authority’s suggestion of some gradually reducing post-adoption contact to be sufficiently mitigating. Following the separation of L and his mother on the day of the orders, no contact had however taken place for three months.
• The Court made it clear that “on the recorder’s own assessment of the mother, it [was] hard to see how she could have expected that post-adoption contact could successfully occur” ([51]).
• Parties must therefore be practical and realistic as to the weight that can be attached to, and the appropriateness of, any proposed contact.

Commentary

The termination of a parent/child relationship by a placement order is one of the most severe and draconian steps a court can take. Only where the deficiencies in the parenting which the child is likely to receive are of a nature and degree to justify termination should such orders be made. Put simply, “only in exceptional circumstances and where motivated by overriding

requirements pertaining to the child’s welfare, in short, where nothing else will do” (per Baroness Hale in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 at [198], set out by Peter Jackson LJ at [40]).

In summary:

• Clear and substantial justifications are needed to evidence necessity and proportionality
• Those justifications must be well-reasoned, looking at the case in the round
• The test set out by Peter Jackson LJ at paragraph [42] outlined above provides a helpful framework to utilise in cases such as this
• “where nothing else will do” remains central to the consideration of placement orders

Practical Takeaways

When assessing proportionality, it is essential to:

• Quantify risk
• Explore realistic support
• Factor in any relevant cultural context
• Avoid over-reliance on purported parental ‘insight’
• Consider the feasibility of any proposed contact